E-Discovery Update: Demonstrating Burden in E-Discovery

Under both the current and the amended Federal Rules of Civil Procedure scheduled take effect December 1, a party served with discovery requests can challenge them on grounds of undue burden. Of late, this is particularly relevant to discovery requests involving electronically stored information ("ESI"), as the cost of collecting and processing voluminous digital information can be considerable. However, attorneys representing producing parties often fail to adequately convey the true burden of an ESI production to the court, reducing the odds that they can have the requests narrowed or even tossed out by a judge. A number of basic strategies can help producing parties present their best case.

1. Research The Details

One common weakness when challenging the burden of e-discovery requests is a lack of specificity. This is entirely understandable. Very few attorneys are technologists by training, and it is much more natural for litigators to research case law to find analogous fact patterns than it is for them to develop a comprehensive understanding of the technological challenges of responding to a discovery request. Unfortunately, legal precedent is fairly scarce, as many e-discovery disputes are resolved without a written opinion and fewer still are ever published. Even more unfortunately, relying entirely on legal authority to challenge a discovery request minimizes the very real logistical problems that producing parties face in responding to requests for digital information.

While it is always helpful to have legal precedent on your side, it can be even more persuasive to tell a compelling story about why it is so difficult for a client to respond to a discovery request. For example, in challenging a request for a comprehensive search across a company's entire network, an attorney would be well-served to describe the number of computer workstations, servers, and physical locations that would need to be searched-and contrast that with the specific circle of relevant employees whose computers are much more likely to contain potentially relevant information. In seeking relief from a request for backup tapes, an attorney could rely on generic arguments about the time and expense of restoring tapes in general-or the attorney could describe the contents of a specific backup tape, the specific amount of time it took to restore that single tape, and the tiny percentage of potentially relevant information that the tape actually contained.

2. Educate The Court

Demonstrating burden involves more than pouring out technical details before a busy judge who reserves only a small portion of the court's time for discovery motion practice. Showcasing the true burden of an ESI discovery request requires that the judge understand the story that is supported by the technical and logistical details presented in papers and in oral argument. Often, the best approach is to keep the story in simple terms-but with a footnote for every single factual statement. It's not enough to state that it's impossible to access a fifteen-year accumulation of obsolete minicomputer backup tapes sitting in offsite storage. On the other hand, describing when these tapes were created, how long it's been since the equipment that created them was taken out of service, the ease with which they can still be read today (if they are still readable), and the likelihood that any relevant data would actually be found on these digital archives tells a straightforward yet compelling story. This narrative is strongly supported by the technical details, such as estimated tape shelf life, data format, and time required to restore a tape volume, but this detailed information should not overshadow the larger story that clearly lays out why a discovery request should be modified or disallowed.

3. Be Specific In Estimating Costs - And Bring Experts To Back Them Up

The biggest question in most discovery disputes-electronic or hardcopy-is how much it will cost to respond to a discovery request. In the e-discovery arena, the cost to process digital information has fallen dramatically over the past few years, as more efficient solutions become available and a larger number of solutions providers offer competing services. Still, collecting, filtering, reviewing, and producing electronic materials can be an expensive proposition.

General statements about the cost of e-discovery are not enough to persuade a judge to order relief from discovery requests. Indeed, such statements only demonstrate that the moving party has not adequately researched the underlying discovery issue. A producing party is better served by specifically describing the digital information sources that are relevant to the discovery request and the cost to work with each one. Providing a detailed breakdown of estimated costs may also reveal that certain digital information, such as computer servers, are easier and less expensive to process than other information archives, such as backup tapes and obsolete media.

Few attorneys have the first-hand knowledge to explain why responding to a specific discovery request will cost so much. No matter how well briefed they may be in arguing e-discovery burden, they are still channeling an analysis prepared by one or more technologists supporting the trial team. Accordingly, in addition to submitting cost estimates regarding a project, attorneys should consider having an expert with direct knowledge available to explain why the procedures outlined in the estimate are required to complete the task. In some e-discovery motion practice, the requesting and producing parties offer significantly different cost estimates for responding to a discovery request. Providing an expert to explain required procedures gives the judge the ability to test the producing party's position and better understand nuances that might not be evident from a page-limited motion and supporting brief.

4. Offer An Alternative Way Of Obtaining The Same Information

The discovery process is intended to uncover the facts-good or bad-that are relevant to the litigants' legal positions. Many judges are reluctant to rein in discovery requests that uncover relevant evidence. By the same token, though, judges approve fair and reasonable ways to obtain this information. A final strategy for challenging highly burdensome e-discovery requests is to demonstrate that the same information can be obtained using less disruptive and expensive measures. Put another way, the requesting party could receive the same discoverable information-at a lower cost to all-if the request were framed differently.

For example, a party may request production of a complex proprietary database that contains some relevant information. It is expensive to produce the database, and it contains substantial proprietary information that is irrelevant to the legal dispute. One way to challenge production of the database is to note that only a tiny fraction of the information in the database is actually relevant, and that decision-makers within the organization relied upon database reports, not the database itself, to make decisions. As a consequence, these reports (which may have been printed out or rendered to PDF format) contain most if not all of the relevant information requested, and they can be produced without the problems inherent in producing a database.

Similarly, litigants often request information stored on backup tapes. However, depending on when and why these tapes were created, much if not all of the information stored on the tapes may be duplicative of information already accessible with much less effort (and at lower cost) from computer servers and workstations already in use. Showing the court that the same information can be-or has already been-obtained makes it much easier for a judge to provide relief to the producing party.

Conclusion

Judges recognize that the discovery costs should bear some relation to the case being litigated. A $50,000 breach of contract matter should not require $500,000 of e discovery services. Demonstrating concrete ways in which ESI discovery requests are inappropriate to a specific matter is an essential part of the litigation process, and one that helps judges maintain a proper balance in the discovery process..